Wednesday, April 28, 2010

(The following was co-authored with Patrick Takahashi, former director of the Hawaii Natural Energy Institute, and submitted as comments to the National Oceanographic and Atmospheric Administration for public input on drafting a national marine aquaculture policy.)

The role of marine aquaculture and its relevance to a safe, sustainable U.S. seafood supply has long been recognized. At the request of the then Administration’s Marine Fisheries Advisory Council in 2005, NOAA developed its 10-Year Plan for Marine Aquaculture in October 2007 to implement four distinct goals: (1) a comprehensive regulatory program for marine aquaculture; (2) development of commercial marine aquaculture and replenishment of wild stocks; (3) promoting public understanding of marine aquaculture; and (4) fostering increased collaboration and cooperation with international partners.

NOAA is currently seeking broad input on components of a draft marine aquaculture policy from interested stakeholders. Based upon review and public comment on its draft policy statement, NOAA will issue a new National Marine Aquaculture Policy.

The NOAA policy mandate applies particularly to Federal waters which extend 3 miles to 200 miles from shore. States currently have state regulatory jurisdiction over internal and near-shore waters up to 3 miles offshore. The United States has national sovereign jurisdiction over its territorial waters up to 12 miles offshore and extended jurisdiction in a 12-mile contiguous zone up to 24 miles offshore. Waters up to 200 miles offshore constitute the U.S. Exclusive Economic Zone over which it has regulatory powers and stewardship responsibilities, pursuant to international protocol under the United Nations Law of the Sea. The State of Hawaii, which is surrounded by ocean and formed of an island chain extending 1500 miles to the island of Midway, has the largest jurisdictional area of ocean water in the U.S. and contains one of the largest Exclusive Economic Zones in the world, with over 200,000 square miles of open ocean in its EEZ. Hawaii with EEZ, for comparison, would be twice the size of Texas.

World fisheries monitoring has long sounded alarm over the very serious and accelerating decline in wild fish stocks throughout our oceans. Projections show that with increasing world population and a shift of nutritional patterns away from red meat towards seafood, actual fish stocks, and hence world seafood production, could decline precipitously toward total depletion in the near future.

Aquaculture already supplies over 40% (70% from China) of global seafood production. Imports comprised over 80% of U.S. seafood supply in 2006, while U.S. production amounted to only about 460,000 metric tons. NOAA has estimated that annual domestic aquaculture production could be increased by 1 million metric tons by 2025. Similarly, due to declining wildstocks caused by overfishing, it is estimated that global aquaculture production would have to double within 20 years to meet the needs of a growing world population.

However, increasing commercial seafood production in the U.S. has been stymied by patchwork, ineffective and uncertain federal regulatory processes with overlapping jurisdiction applicable to marine aquaculture facilities, and by the need for additional research on environmental and socioeconomic implications of large-scale increases in commercial marine aquaculture. In a regulatory climate fraught with uncertainty, consumer and environmental fears tend to become exaggerated, and businesses will avoid risk to capital and not invest in developing marine aquaculture.

Aquaculture has long been practiced in internal waters such as fish ponds, rivers and lakes and in fish farms on land. The indigenous Native Hawaiians had developed fishpond aquaculture into a high form that sustained large populations even by today’s standards. However, limits on available land space and waters, as well as pollution and other environmental considerations, make expansion of on-shore aquaculture industries problematic. For example, at its height Native Hawaiian fishponds are estimated to have reached about 360 in number and supplied about 2 million pounds of fish for a population estimated at 500,000 or more, whereas today Hawaii has a population of 1.3 million and consumes about 50 million pounds of seafood per year, of which about 17 million pounds are imported.

Offshore marine aquaculture has become widely practiced throughout many countries of the world such as China, India, Indonesia, Japan, Thailand, and European Union. Hawaii is unique in the United States in having in place a system for permitting near-shore (within 3 miles) commercial aquaculture facilities. Two companies, Kona Blue Water Farms and Hukilau Foods (formerly Cates International) today operate in Hawaiian waters. Typical near-shore marine aquaculture facilities employ mesh cages or mesh enclosed pens tethered to the seafloor in which selected fish species are grown and harvested. However, these near-shore facilities have been criticized for using non-organic or antibiotics-laced fish food, generating fish food debris and wastes that cause downstream fouling, escapes and debris contamination of wildstocks, and attracting predator hazards to the near-shore environment.

New marine aquaculture technologies are under development to allow facilities to be sited farther in the ocean away from the near-shore environment. One example is the proposal of Hawaii Oceanic Technology, Inc., to deploy fully autonomous, submerged, self-positioning, OTEC-powered Oceansphere™ cages in deep ocean water. Its final environmental impact statement to operate submerged ocean cages 3 miles off the Kohala Coast of the Big Island was recently approved by the Hawaii Dept. of Land & Natural Resources. The company expects that operating farther off-shore in deep ocean water will avoid many of the environmental problems with near-shore facilities.

Floating island “ranches” for growing, harvesting, and processing seafood on an even grander scale operating far off-shore perhaps to the full 200-mile extent of the EEZ have also been proposed. As described in an article published in August 1999, “Ultimate Ocean Ranch, The Sea Technology”, by F. Matsuda, J. Szyper, P. Takahashi, and J. Vadus, such ocean ranches would use artificially-induced upwelling of deep-ocean nutrients in the open seas to enhance biological food productivity unencumbered by land-based or near-shore aquaculture limitations. Commercial-scale fish and seafood production would be managed on manned, OTEC-powered floating platforms. Such integrated facilities can be scaled to operate in a range from $3 million in aquatic food products produced annually from a 10 megawatt (MW) OTEC plant, to more optimistic calculations for a 1,000 MW facility producing $1 billion a year in seafood products.

It is clear that the U.S. must promptly undertake coordinating and adopting a national marine aquaculture policy and provide the funding, regulatory capacities, and needed research support for commercial marine aquaculture within the EEZ. However, due to a past practice of importing most of its seafood needs from abroad and reticence over environmental opposition to opening the EEZ to commercial operations at home, the U.S. policy has been long delayed and is basically starting from scratch. Hawaii’s near-shore permitting of two commercial aquaculture operations are currently the only domestic examples of commercial ocean aquaculture.

Environmental opposition to even these two Hawaii operations has provoked a call for a moratorium on further expansion of offshore commercial aquaculture. On the other hand, Native Hawaiian cultural opposition to commercial scale uses of Hawaiian waters has led to a call for the U.S. to support a return to onshore fishpond and traditional ahu’apu’a (mountain-to-sea) land use practices for food production. These environmental and cultural considerations in Hawaii have far less or only nominal significance to commercial aquaculture in deep ocean waters where the density of use of a commercial scale operation is tiny in relation to much larger ocean spaces. It is also apparent that Hawaii’s cultural and socioeconomic considerations will be different from other states that have shorelines, and from overall national interests subject to Federal jurisdiction and regulatory oversight.

It will therefore be an important foundational task for NOAA to differentiate its marine aquaculture policy into one part in coordination with state jurisdiction for near-shore (up to 3 miles) aquaculture, and another part subject to exclusive Federal jurisdiction for commercial scale aquaculture in Federal waters (3 to 200 miles offshore) in the EEZ. In the state-coordinated near-shore aquaculture policy part, NOAA can provide states with coordination of other relevant Federal agencies, monitoring capabilities, and research support. NOAA can also define a model state-coordinated program that states without near-shore marine aquaculture programs in place can follow. In the Federal waters aquaculture policy part, NOAA should exercise full Federal pre-emption of exclusive jurisdiction over Federal waters under a uniform ocean aquaculture policy.

Another important task for NOAA in establishing a national policy is to define an effective process, supported by well-reasoned considerations and science-based knowledge, for mapping permittable commercial marine aquaculture zones (MAZ) in the EEZ. Such mapping should identify and exclude trafficked, recreational, and environmentally sensitive near-shore areas, ocean transport lanes, defensive seas areas, feeding and spawning areas for extant fish wildstocks, and migration areas for fish, whales, etc.

It will also be an important task for NOAA to set up an effective and prompt, yet environmentally protective, lease permitting process for identified commercial marine aquaculture zones, including setting standards for content and scope of programmatic EISs for such zones, and EAs for applicant operators. Due to national economic interests, standards will also need to be set for applicant operators to qualify as U.S. nationals or U.S. owned companies, having adequate capital and track record for carrying out proposed operations, and fulfilling mandated responsibilities for such operations.

Rules for regulating operators and monitoring the impacts of their operations on surrounding areas will need to be defined by NOAA. Security and safety operations will need to be allocated between Federal authorities such as the U.S. Coast Guard, U.S. Navy, state and local authorities, and operators themselves.

Much of earlier monitoring work has been limited to tracking the decline of fisheries and focusing only on edible seafood commodities. The whole ocean resource development system needs to be better understood. Ultimately, next generation fisheries will need to manage large-scale deep-ocean upwelling and ocean thermal energy conversion effluents used by floating ranch platforms. It is imperative that the science and engineering of these systems be investigated now. NOAA should establish marine bioengineering centers for research study in the Pacific and Atlantic Oceans and Gulf of Mexico to establish the knowledge base for operating marine seafood and product plantations, growth cycles for open ocean systems, linking deep ocean and OTEC effluents to optimize productivity, and understanding the interplay of these programs with remediation of global warming, hurricane prevention or mitigation, sustaining ocean biozones, and other new fields of knowledge.

Therefore, in view of the considerable complexity of these policy drafting tasks and the considerable funding, agency expertise, and research support required, we recommend that NOAA consider the following Five Imperatives in drafting a National Marine Aquaculture Policy:

Imperative #1:NOAA should differentiate its national marine aquaculture policy into a state-coordinated near-shore aquaculture policy part, providing state regulatory programs (within 3 miles offshore) with support in the form of coordination of other relevant Federal agencies, monitoring capabilities, and research support, and a Federal waters aquaculture policy part in which NOAA exercises full Federal pre-emption for exclusive jurisdiction over a uniform, national ocean aquaculture policy applicable to Federal waters (3 to 200 miles) in the EEZ.

Imperative #2:NOAA must take leadership and apply the considerable regulatory expertise of its agency and of other extant federal regulatory agencies to balance environmental and socioeconomic concerns with business risk and feasibility in a timely, forward-looking policy document.

Imperative #3: NOAA should develop its draft policy in close coordination with the U.S. Environmental Protection Agency and all other relevant Federal jurisdictional offices to create a one-stop organization capable of acting swiftly and substantively on lease permitting, qualifying applicant operators, evaluating environmental and socioeconomic impact statements and assessments, regulating operations, and monitoring impacts of commercial marine aquaculture facilities.

Imperative #4: NOAA should provide advisory guidance to the Department of Commerce to identify and set aside Federal stimulus funds and future appropriations of Federal funds to jump-start the regulatory infrastructure for commercial marine aquaculture facilities. This will need to be coordinated within Congressional budgetary constraints and with U.S. Treasury and commercial lending organizations in a working partnership.

Imperative #5: NOAA should develop its draft policy in close coordination with the Department of Agriculture, Department of Energy and the National Science Foundation to plan for and develop research capabilities in support of the development of the knowledge base for marine aquaculture science and technology.

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About Me

Leighton Chong has been an intellectual property and patent attorney in a wide range of technologies for over four decades. He received his Bachelor of Science degree in Electrical Engineering at Yale University, and Juris Doctor degree at Boston University School of Law. He was a founding partner of the intellectual property law firm of Ostrager Chong Flaherty & Broitman, NYC, to which he remains Of Counsel and heads its Hawaii affiliate office, working with Hawaii technology companies in ecommerce, electronics, biomedical equipment, and renewable energy. He published his first book "Song of Planet Earth" in 2013, a travel adventure story about nuclear weapons proliferation and whether mankind has the will to prevent catastrophes of our own making.